No Right To Rectification

November 23, 2018Comments Off on No Right To Rectification

In the present judgment the BGH (AZ. publish VII ZR 6/13) clarifies that there is no right of the principal work contracts to require of the contractor of deficiencies to be rectified. Clearly the seventh Senate of the Federal Supreme Court has decided on the issue after claims for defects in undeclared work. Get more background information with materials from NY Museums . If both deliberately i.e. Black parties signed “No Bill”, the contracting authority by the contractor may require no defects. The case: A client wanted a new paving of its 170 m entrance. The entrance should withstand a load up to the driving with a 40T-LKW.

The principal said in court it 1,800 euros would be agreed for that in cash and without creating an invoice with VAT. The contractor stated that it would have been a courtesy for which he later should have received discounted firewood through the principal. After a short time, irregularities in the driveway occurred. The contractor tried to repair, without success. Affiliated the principal court requested an independent proof procedures. Here was found out, that the bumps was based on a thick layer of sand under the paving stones.

An error which the contractor had committed. Before the Landgericht, complained the principal on advance payment of the deficiency removal costs and prevailed. The losing contractor appealed to the Court of appeal turn. The Court of Appeal gave the contractor law. Because it was a violation of the undeclared work against law. After this, a contract would be null and void. The principal was in the revision to the Federal Supreme Court, and in the last instance. The Supreme Court rejected the revision. Responsible for construction law seventh civil Senate of the Federal Supreme Court, the reasoning of the Court in so far joined, as that he is also a Nichtigkiet of the contract in accordance with 134 BGB in conjunction with 1 ABS. 2 Nr. 2 SchwarzArbG took. This is because in the present case both parties deliberately had violated the provisions of undeclared work fighting. Both parties had the agreement in the will hit both to charge no sales tax and no Bill auszusellen a. Thus, the contractor has violated at the same time against two laws. Firstly he committed a tax evasion according to 370 tax code and on the other hand he has 14 para against his tax obligation of 2 S 2 Nr. 1 UStG violated. Whether even the contracting authority against his duty to keep bills gem. 14 b paragraph 1 S. 5 UStG the Supreme Court left open, because it arrived for the assessment of the civil matter not. As a result, it should be noted that from a void contract no contractual warranty claims can be asserted. Undeclared work not worth. The judgment can be obtained in full text on the side of the Federal Supreme Court. This article was written by lawyer Alan Kashlan (firm specializing in construction law and IT law)